Bal Kishan vs Board of Revenue and Others

S.R. Mishra, J.—By means of this writ petition, the Petitioner has prayed for quashing the orders of Respondents 1, 2 and 3.

The facts giving rise are that Respondent No. 6 filed a suit u/s 229B of U.P. Zamindari & Land Reforms Act claiming the cotenancy right in respect of the land in dispute which was admittedly owned by Gheesa, This claim was contested by the Petitioner on the ground that he was adopted about SO years back by one Sunder Lai. The trial court after considering the documentary evidence decreed the suit declaring Respondent No. 6 as co-bhumidhar of the plot in dispute to the extent of one and half share. Aggrieved by the said order of the trial court the Petitioner filed appeal which was dismissed on 3-6-1988. The Petitioner filed second appeal which too met the same fate. Aggrieved by the order of Respondent No. 1, the Petitioner has come to this Court.

I have heard the learned Counsel for the Petitioner and the counsel for the Respondents. It has been urged on behalf of the Petitioner that dispute was about adoption by Sunder Lal before the Respondents 1 to 3 and for determination of such dispute, oral evidence was material and non consideration of oral evidence has affected the merits of the case. Therefore, the orders of Respondents 1 to 3 are liable to be set aside on this score alone.

The learned Counsel for the Respondents submitted that the finding recorded by the Respondents 1 to 3 is based on the fact that the Authorities did not believe the theory of adoption. Non consideration of oral evidence is, thus, not fatal and interference is called for in the writ jurisdiction.

From a perusal of the order of Sub Divisional Officer I find that though documentary evidence was considered but the oral evidence was consciously not considered and reason for non consideration was given as under:

I am of the view that discussion of oral evidence as to the adoption of Lakhi by Sunder Lal is not necessary.

The appellate authority and the Board of Revenue also accepted the judgment of the trial court. If has been held by this Court that oral evidence is a part of evidence, and non-consideration thereof vitiates the judgment in the normal circumstances, except in those class of cases where documentary evidence are clinching, and, nothing turns on the oral evidence adduced in the case. But, is the present case, when the documentary evidence adduced by the parties cannot be said to be conclusive, and the adoption, which took peace long back was to be proved by oral evidence without considering the same, the court of fact cannot hold that there is no need for consideration of oral evidence. Without considering oral evidence, no court can come to the conclusion as to whether oral evidence is worthless, or, not material for deciding the controversy involved in the case.

It appears from the orders of the Appellate Authority and the Board of Revenue that while deciding the appeals, they too have completely ignored the oral evidence. In Paras Nath v. Wajful Hasan 1974 URO 615, trial court considered oral evidence, but, first and second appellate courts did not consider the same, a Division Bench of this Court held that the consolidation authorities being courts of facts, they must consider the oral evidence, and, failure to do so will render their judgments bad in law.

From the perusal of the pleadings and, material available on record, I find that the case of the Petitioner stands on a better footing as apparently it is clear that oral evidence was material for deciding the controversy.

There is substance in the argument of learned Counsel for Petitioner that there were material evidence which were erroneously discarded, and, the Respondent Nos. I to 3 have committed as error apparent on the face of record, by deciding the case without considering oral evidence. Thus, the orders or Respondents Nos. 1 to 3 are liable to be set aside.

In the result, the writ petition succeeds and is allowed. The judgment and order of Respondents 1 to 3 are hereby set aside and the case is sent back to the trial court for deciding the same afresh according to law and in the view of discussions made above Since the case is old one the trial court is directed to decide the same within a period of six months from the date of production of a certified copy of this order. The parties shall bear their own costs